United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
C. Godbey, United States District Judge
Order addresses Defendant Gold Creek Foods, LLC's
(“Gold Creek”) motion to dismiss, or in the
alternative, to transfer venue . Because the Court holds
that the parties' agreement includes a valid and
applicable forum selection clause, the Court grants Gold
Creek's alternative motion to transfer the action to the
U.S. District Court for the Northern District of Georgia.
Origins of the Dispute
Creek is a Georgia corporation. It specializes in deboning
and processing poultry. Just before getting in touch with
Plaintiff Omnibus Trading Inc. d/b/a Chef's Corner
(“Chef's Corner”), it expanded to prepare
ready-to-eat, fully cooked chicken products. Chef's
Corner is a California corporation that supplies fully cooked
food products to schools around the country. The two had
obvious business potential: Gold Creek could process, cook,
and package chicken products that Chef's Corner could
then ship to schools nationwide. In September 2017, the
parties began negotiating an agreement to do just that.
dispute regards the details of that agreement. Chef's
Corner claims that it lacked notice of Gold Creek's terms
and conditions, that Gold Creek made fraudulent
misrepresentations about its capability to handle Chef's
Corner's orders, and that Gold Creek breached the
parties' agreed upon pricing structure. It sues Gold
Creek under a variety of breach of contract and fraud
theories. Gold Creek now moves to dismiss the claims under
Federal Rules of Civil Procedure 12(b)(2), 12(b)(3), and
12(b)(6), or to alternatively transfer the action to Georgia
under 28 U.S.C. § 1404(a) (“section
Legal Standard Under Section 1404(a)
1404(a) “provides a mechanism for enforcement of forum
selection clauses that point to a particular federal
district.” Atl. Marine Constr. Co., Inc. v. U.S.
Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 59 (2013).
Federal law applies to the enforceability determination of a
forum selection clause “whether jurisdiction be based
on diversity, a federal question, or some combination of the
two.” Haynsworth v. The Corporation, 121 F.3d
956, 962 (5th Cir. 1997). It is well established that forum
selection clauses are valid and enforceable under federal law
“absent a showing of unreasonableness under the
circumstances.” M/S Bremen v. Zapata Offshore
Co., 407 U.S. 1 (1972).
Corner's theory is that Gold Creek unreasonably
communicated the clause. See Carnival Cruise Lines, Inc.
v. Shute, 499 U.S. 585, 590 (1991). When considering
whether a forum selection clause was communicated reasonably,
courts look at both the “facial clarity of the
contract” and the “plaintiff's familiarity
with the contract and its ability to become meaningfully
informed of the contractual terms at stake.”
Flowserve Corp. v. Hallmark Pump Co., 2010 WL
2232285, at *2 (S.D. Tex. Feb. 3, 2010). The key is whether
the plaintiff is given “some notice of the existence of
the service agreement to which [it] is assenting.”
Id. at 4.
valid, the forum selection clause applies to all claims that
“arise out of the contractual relationship and
implicate the agreement.” Demond v. Infiniti HR,
L.L.C., 2018 WL 4145053, at *4 (N.D. Tex. Aug. 30,
2018). The applicability of the clause “depends on
whether the resolution of the claims relates to
interpretation of the contract.” Id. (quoting
Pinnacle Interior Elements, Ltd. v. Panalpina, Inc.,
2010 WL 445927, at *5 (N.D. Tex. Feb. 9, 2010)).
section 1404(a) motions require district courts to evaluate
and balance a host of private and public interest
factors. The presence of a valid, applicable forum
selection clause changes the calculus in two ways: (1) the
plaintiff's choice of forum is accorded no weight, and
(2) the Court must deem the private interest factors entirely
in favor of the preselected forum and only consider public
interest arguments against transfer. Atl. Marine,
571 U.S. at 63-64. The “practical result” of
these changes “is that forum selection clauses should
control except in unusual cases.” Id. at 64.
The party challenging the forum selection clause “bears
the burden of showing that the public interest factors
overwhelmingly disfavor a transfer.” Atl.
Marine, 571 U.S. at 67.
The Court Grants Gold Creek's Motion to Transfer
The Forum Selection Clause is Valid
look at the clause here reveals that it was reasonably
communicated. The written agreement at issue is titled the
Credit Application and Open Account Agreement (“the
Agreement”). The Terms and Conditions to the Agreement
appear in three paragraphs just above the signature line on
page two. Decl. Of Colton Cuny, Ex. C, [9-2]. The second
paragraph includes a link to the General Terms and Conditions
of Sale for Gold Creek, and states that those terms are
incorporated into the Agreement. Id. Clicking on the
link and scrolling to page three reveals the forum selection
clause. Id., Ex. D, [9-2]. Discovering the clause
requires due diligence, but it is by no means concealed to
the extent of being unenforceable. See, e.g.,
Flowserve, 2010 WL 2232285 (holding the forum selection
clause was not reasonably communicated because it was
included in terms sent to plaintiff after payment).
The Forum Selection Clause Applies to All of ...